Jurisdiction Commons^™

Can States "Just Say No" To Federal Health Care Reform? The Constitutional And Political Implications Of State Attempts To Nullify Federal Law, Ryan Card

BYU Law Review

No abstract provided.

Patient Safety Law: Regulatory Change In Britain And Canada, Fiona Mcdonald

PhD Dissertations

Did governments in different countries regulate common concerns about patient safety differently? If so how and why did they do this? This thesis undertakes a historical comparison of the regulation of patient safety in Britain and Canada between 1980 and 2005. These jurisdictions began the period with very similar regulatory frameworks, but by 2005 there were distinct differences in each jurisdiction‘s regulatory response to patient safety. Britain was very actively regulating all aspects of service provision within its health system in the name of patient safety, whereas Canada‘s regulatory direction showed adherence to the 1980s model with only scattered incremental …

Israel, Palestine, And The Icc, Daniel Benoliel, Ronen Perry

Michigan Journal of International Law

In the wake of the Israel-Gaza 2008-09 armed conflict and recently commenced process at the International Criminal Court (ICC), the Court will soon face a major challenge with the potential to determine its degree of judicial independence and overall legitimacy. It may need to decide whether a Palestinian state exists, either for the purposes of the Court itself, or perhaps even in general. The ICC, which currently has 113 member states, has not yet recognized Palestine as a sovereign state or as a member. Moreover, although the ICC potentially has the authority to investigate crimes which fall into its subject-matter …

Michelot Yogogombaye V. Republic Of Senegal, Charles C. Jalloh

Articles

No abstract provided.

Max Weber On Property: An Effort In Interpretive Understanding, Laura R. Ford

Cornell Law School J.D. Student Research Papers

This article reviews Max Weber’s scholarly work pertaining to property, beginning with his first dissertation and ending with the compilation that is Economy and Society. Three phases of Weber’s work are described in detail: a legal phase, an economic-historical phase, and a sociological phase. It is argued that the sociological phase represents the culmination of the two prior phases, drawing on material and arguments from those earlier phases. In the sociological phase of his writing, it is argued that Weber developed a theory of property that is capable of accounting for that phenomenon in all of its dimensions: structural, material, …

“Bring[Ing] Our Enemies To Justice”: Terrorism And The Court, Anna Elazan

Legislation and Policy Brief

This article focuses on the venue of Mohammad’s trial and is broken into three sections. The first section reviews the historical use of military tribunals. This section begins by looking at the basis for Presidential authority to authorize the use of military commissions. This section then outlines the first use of military commissions since World War II. President George W. Bush’s authorization parallels the provisions in President Franklin Roosevelt’s authorization of the use of commissions in the 1940s. However, following authorization, the military commissions were subject to judicial challenges and significant revision by Congress. Finally, this section tracks recent developments …

A Tie That Binds: Forum Selection Clause Enforceability In West Virginia, J. Zac Ritchie

West Virginia Law Review

No abstract provided.

A Theoretical Justification For Special Solicitude: States And The Administrative State, Matthew S. Melamed

Cardozo Public Law, Policy & Ethics Journal

The article examines the Supreme Court's decision in Massachusetts v. EPA, focusing on the doctrine of special solicitude in standing analysis for states. It argues that the Court's recognition of Massachusetts' quasisovereign interest to challenge the EPA's denial of a rulemaking petition reflects a federalist concern, ensuring states can hold federal administrative agencies accountable. The analysis critiques the Court's reliance on special solicitude, highlighting tensions between traditional standing requirements and the unique role of states in constitutional adjudication. The article posits that the special function model of standing, which emphasizes states' roles as protectors of citizens' interests, provides a …

When Is An Alternative Forum Available? Rethinking The Forum Non Conveniens Analysis, Joel H. Samuels

Faculty Publications

No abstract provided.

The Challenges For Asian Jurisdictions In The Development Of International Criminal Justice, Mark Findlay

Research Collection Yong Pung How School Of Law

The paper reviews the different frameworks for international criminal justice in which China’s influence can be measured, or should be present, looking specifically at procedural traditions on which international criminal law and its jurisprudence are said to be based. Understanding China as a transitional hybrid criminal justice model undergoing radical transformation in its justice delivery and discourse, it is argued, assists significantly in forecasting where the synthesis of international criminal procedure may be heading. Attached to a re-interpretation and critique of individualised liability is the unpacking of China’s in principle commitment to communitarian rights and social protection as a foundation …

In Re Evanson, No. 2009-J-033, 2009-Ap-06 (Blkft. Tr. Ct. App., Jun. 22, 2010)., Blackfeet Appellate Court

Court Decisions

The Court of Appeals upheld the lower court’s dismissal of a child custody case for lack of jurisdiction. The Court held that the Blackfeet Family Code limits the Court’s jurisdiction only to those children who reside on the Blackfeet Reservation, which Evanson did not.

How Piracy Has Shaped The Relationship Between American Law And International Law, Joel H. Samuels

Articles

No abstract provided.

Derailed By The D.C. Circuit: Getting Network Management Regulation Back On Track, Edward B. Mulligan V

Federal Communications Law Journal

As the Internet continues to play a more central role in the daily lives of Americans, concerns about how Internet service providers manage their networks have arisen. Responding to these concerns and recognizing the importance of maintaining the open and competitive nature of the Internet, the FCC has taken incremental steps to regulate network management practices. Perhaps the most significant of these steps was its August 2008 Memorandum Decision and Order in which the FCC condemned Comcast Corporation's network management practices as "discriminatory and arbitrary." In that Order, the FCC required that Comcast (1) adopt new practices that complied with …

Putting The Brakes On Libel Tourism: Examining The Effects Test As A Basis For Personal Jurisdiction Under New York's Libel Terrorism Protection Act, Michelle Feldman

Cardozo Law Review

No abstract provided.

Private International Law From The Equitable Jurisdiction: Imperialism, Universalism And Pluralism, Tiong Min Yeo

2009 Yong Pung How Professorship of Law Lecture

One side-effect of globalization is increasing cross-border conflict arising from transactions between parties. Today, the courts have sophisticated tools to deal with such conflicts. The focus of this paper is the interrelation between the court’s approach when dealing with problems in its equitable jurisdiction, and its approach when dealing with cross-border problems.

Did The Madisonian Compromise Survive Detention At Guantanamo?, Lumen N. Mulligan

Faculty Works

In this essay, I take up the Court’s less heralded second holding in Boumediene v. Bush - that a federal habeas court must have the institutional capacity to find facts, which in Boumediene itself meant that a federal district court must be available to the petitioners. Although this has gone largely unnoticed, I contend that this holding is inconsistent with the Madisonian Compromise - the standard view that the Constitution does not require jurisdiction in any federal court, except the Supreme Court. In fact, it appears that the Court adopted Justice Story’s position that the Constitution requires vesting of jurisdiction …

Jurisdictional Discovery In United States Federal Courts, S. I. Strong

Faculty Publications

The article begins with a discussion of the historical development and jurisprudential bases for jurisdictional discovery, then analyzes the two major structural problems with the device, namely (1) the lack of any identifiable standard regarding when jurisdictional discovery will be ordered and (2) the absence of any understanding about the proper scope of such discovery. Next, the article describes the root causes of these structural inadequacies and proposes several ways to address the root concerns, relying on a new line of Supreme Court precedent (including Ashcroft v. Iqbal) as well as analogies to other common law jurisdictions. The paper concludes …

Comparison And Analysis Of Korea And Japan Status Of Forces Agreements And Their Implications For Iraq's Sofa, Jiyoung Cha

Cardozo Journal of International and Comparative Law

The note examines the tension between protecting U.S. military personnel's rights and respecting host nations' sovereignty through Status of Forces Agreements (SOFAs), focusing on cases from Korea, Japan, and Iraq. It argues that while SOFAs are designed to protect U.S. soldiers, they often infringe on host countries' sovereignty, leading to diplomatic tensions. The analysis highlights the imbalance in SOFAs, favoring the U.S. and undermining host nations' sovereignty, as perceived by citizens and governments. The author suggests that the U.S. needs to adjust its SOFA approach to avoid diplomatic tensions, recommending a more balanced jurisdictional framework.

Reconsidering Reprisals, Michael A. Newton

Vanderbilt Law School Faculty Publications

The prohibition on the use of reprisals is widely regarded as one of the most sacrosanct statements of the jus in bello applicable to the conduct of modern hostilities. The textual formulations are stark and subject to no derogations. Supporters of the bright line ban describe it as a vital bulwark against barbarity. In the words of the International Committee of the Red Cross, the prohibition is absolute, despite the fact that the declarations of key states indicate residual ambiguity over the scope of permissible reprisals, particularly in the context of non-international armed conflicts. Reprisals are a recurring feature of …

The Usual Practice: Raising And Deciding Failure To Exhaust Administrative Remedies As An Affirmative Defense Under The Prison Litigation Reform Act, Joshua S. Moskovitz

Cardozo Law Review

No abstract provided.

Jurisdictional Discovery In United States Federal Courts, S. I. Strong

Washington and Lee Law Review

No abstract provided.

Collecting A Libel Tourist's Defamation Judgment?, Doug Rendleman

Washington and Lee Law Review

A libelplaintiffsued an American defendant in aforeign nation where he took advantage ofplaintiff-favoring defamation Law to obtain a heftyjudgment. He brings this judgment to the defendant's state in the United States to collect from her bank account. The defendant 's state's court could not have entered the plaint /ffs judgment because offirst-Amendment doctrines that stem from New York Times v. Sullivan. How should the U.S. court respond to the "libel tourist" and his judgment? This succinct Article summarizes the tangled tale that emerges. Invoking the First Amendment under a public-policy exception to comity, U.S. courts have rejectedforeign-nation defamation judgments. State …

Personal Jurisdiction Over Non-Resident Class Members: Have We Gone Down The Wrong Road?, Tanya J. Monestier

Journal Articles

No abstract provided.

The Tax Injunction Act And Federal Jurisdiction: Reasoning From The Underlying Goals Of Federalism And Comity, David Fautsch

Michigan Law Review

States routinely contest federal jurisdiction when a state tax is challenged in federal district court on federal constitutional grounds. States argue that the Tax Injunction Act, 28 U.S.C. § 1341 (2006), bars jurisdiction and, even if the Tax Injunction Act does not apply, the principals of federalism and comity require abstention. The United States Supreme Court has not squarely addressed the scope of federalism and comity in relation to the Tax Injunction Act, and federal courts of appeal are split. In the Fourth and Tenth Circuits, federalism and comity require federal district courts to abstain even where the Tax Injunction …

Three Obstacles To The Promotion Of Corporate Social Responsibility By Means Of The Alien Tort Claims Act: The Sosa Court's Incoherent Conception Of The Law Of Nations, The "Purposive" Action Requirement For Aiding And Abetting, And The State Action Requirement For Primary Liability, David A. Dana, Michael Barsa

Faculty Working Papers

The ATCA could be a powerful tool to promote corporate CSR, especially in developing countries where local legal restraints are weak. But despite the good normative reasons why the ATCA should be used in this way, serious obstacles remain. The Supreme Court's ahistorical and incoherent formulation of the "law of nations" fails to promote the development of the ATCA in ways that would cover even serious environmental harm. Also, the federal courts' confused jurisprudence concerning aiding and abetting and state action creates too many loopholes through which egregious corporate behavior may slip unpunished. In order to overcome these obstacles, we …

Foreign Fishing Piracy Vs. Somalia Piracy – Does Wrong Equal Wrong?, Leticia M. Diaz, Barry Hart Dubner

Barry Law Review

This article is a sequel to the authors' last article, On the Evolution of the Law of International Sea Piracy, published in December 2009. That article attempted to illustrate the enormous problem of sea piracy off of Somalia. This article was inspired by the authors' attendance and participation at a two-day conference sponsored by the Harvard Kennedy School’s Belfer Center for Science and International Affairs. After the conference the authors were inspired to write this article, setting forth a view of why Somali piracy started and some of the problems created by these illegal acts.

An Empirical Examination Of Universal Jurisdiction For Piracy, Eugene Kontorovich, Steven Art

Faculty Working Papers

This Essay presents the first systematic empirical study of the incidence of universal jurisdiction prosecutions over an international crime. Using data on the number of piracies committed in a twelve year period (1998-2009) obtained from international agencies and maritime industry groups, we determine the percentage of acts of piracy where nations prosecuted under universal jurisdiction we determine the percentage of these cases where nations exercised UJ. Studies of the worldwide use of UJ over other crimes simply count how often UJ has been exercised, but do not attempt to determine the rate of prosecution.

We find that of all clearly …

There Is No Norm Of Intervention Or Non-Intervention In International Law, Anthony D'Amato

Faculty Working Papers

Comments on Prof. Jianming Shen's position that humanitarian intervention is unlawful under international law and that there is a principle of non-intervention in international law that is so powerful that it amounts to a jus cogens prohibition.

Interlocutory Review By Agreement Of The Parties: A Preliminary Analysis, James Pfander, Dave Pekarek-Krohn

Faculty Working Papers

Although the nineteenth century's final judgment rule no longer represents an absolute barrier to interlocutory appellate review, scholars disagree about what should take its place. Some favor a regime of discretionary interlocutory review, with power conferred on appellate courts to select issues that warrant intervention. Others reject discretionary review as a waste of appellate resources and call upon the rule makers to identify specific categories of non-final orders that always warrant review. While the Supreme Court's collateral order doctrine bears some similarity to this process of categorization, the Court may have called a halt to the judicial recognition of new …

Article Iii And The Scottish Enlightenment, James E. Pfander

Faculty Working Papers

Historically-minded scholars and jurists invariably turn to English law and precedents in attempting to recapture the legal world of the framers. Blackstone's famous Commentaries on the Laws of England offers a convenient reference for moderns looking backwards. Yet the generation that framed the Constitution often relied on other sources, including Scottish law and legal institutions. Indeed, the Scottish judicial system provided an important, but overlooked, model for the framing of Article III. Unlike the English system of overlapping jurisdiction, the Scottish judiciary featured a hierarchical, appellate-style judiciary, with one supreme court sitting at the top and an array of inferior …